Saturday, November 22, 2008

Render Unto Caesar

An article in last Wednesday's NY Times highlighted a clash between Islamic courts---which under British law have some authority in matters of divorce, inheritance, etc.---and secular sensibilities of liberal and conservative Brits alike. The worry, a constant theme in debates over multiculturalism, is that in devolving power to minority religious communities, the larger society authorizes sexist and otherwise objectionable practices. Here I want to put that concern in a larger frame, partly by way of putting down a marker for a future more ambitious and scholarly treatment of the issue.

My claim is that in a number of contexts generally thought to be unrelated, there exists the following phenomenon: A and B are interacting legal regimes, each claiming some authority to make binding norms for some of the same people; A claims that in cases of clear conflict with B, A prevails; B claims that in cases of clear conflict, B prevails; although this looks like a recipe for eventual all-out conflict, A and B can co-exist indefinitely through a variety of mediating mechanisms. Here are a few examples:

1) A is the state; B is religion. The state gives people freedom of religion, but only up to the point of not violating either any laws or its most important laws. (The difference depends on whether the state has a rule, like that of the U.S. Supreme Court's interpretation of the free exercise clause, that denies religion-based exemptions to generally applicable secular laws. But even if the state has an exemption regime, it will not grant all possible exemptions. For example, parents will typically be forbidden from denying their children life-saving transfusions, even if transfusions are deemed terribly sinful.) Meanwhile, as in the old Hebrew National hot dog ads, religion will conceive of itself as a "higher authority," and may command disobedience with secular law in cases of conflict over fundamental matters.

2) A is international law; B is the United States. Most international lawyers conceive of international law as "higher" than the domestic law of nation-states. In the U.S., however, to the extent that international law is operative, that is because it is incorporated either through treaty or through the Paquete Habana's principle that "International law is part of our law," but in either case, international law only operates to the extent that it is consistent with the U.S. Constitution and is not superseded by subsequently enacted legislation.

3) A is the European Union; B is a member state of the EU. The EU treats its own norms as supreme over those of its member states. Those member states treat fundamental constitutional rights (and arguably all national constitutional provisions) as supreme over the EU obligations, which only have the status of a treaty.

I believe that in these and other contexts, A and B typically find a modus vivendi or else come to blows. For the extended academic treatment of this topic (to which I won't be able to turn for a number of months, alas), I am interested in cataloguing the mechanisms of accommodation. I am also interested in asking whether there are hidden mutual advantages to this form of seemingly unstable legal pluralism. For now, though, I'd like to collect examples. Thus I call upon readers to send me, preferably by comments (so others can consider and refine) further examples.

Posted by Mike Dorf